Filed: May 13, 1996
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 1996 Decisions States Court of Appeals for the Third Circuit 5-13-1996 Artway v. Atty Gen NJ Precedential or Non-Precedential: Docket 95-5157,95-5194,95-5195 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996 Recommended Citation "Artway v. Atty Gen NJ" (1996). 1996 Decisions. Paper 165. http://digitalcommons.law.villanova.edu/thirdcircuit_1996/165 This decision is brought to you for free and open access by the Opinions of the Un
Summary: Opinions of the United 1996 Decisions States Court of Appeals for the Third Circuit 5-13-1996 Artway v. Atty Gen NJ Precedential or Non-Precedential: Docket 95-5157,95-5194,95-5195 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996 Recommended Citation "Artway v. Atty Gen NJ" (1996). 1996 Decisions. Paper 165. http://digitalcommons.law.villanova.edu/thirdcircuit_1996/165 This decision is brought to you for free and open access by the Opinions of the Uni..
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Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
5-13-1996
Artway v. Atty Gen NJ
Precedential or Non-Precedential:
Docket 95-5157,95-5194,95-5195
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996
Recommended Citation
"Artway v. Atty Gen NJ" (1996). 1996 Decisions. Paper 165.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/165
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________________
NOS. 95-5157, 95-5194 and 95-5195
_____________________
ALEXANDER A. ARTWAY
v.
THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY;
CHIEF OF POLICE OF WOODBRIDGE TOWNSHIP, NEW JERSEY;
THE SUPERINTENDENT OF THE NEW JERSEY STATE POLICE
Attorney General of New Jersey and Superintendent
of the New Jersey State Police, Appellants in No. 95-5157
_________________
ALEXANDER A. ARTWAY
v.
THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY;
CHIEF OF POLICE OF WOODBRIDGE TOWNSHIP, NEW JERSEY;
THE SUPERINTENDENT OF NEW JERSEY STATE POLICE
Chief of Police of Woodbridge Township, New Jersey
Appellant in No. 95-5194
________________
ALEXANDER A. ARTWAY
v.
THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY;
CHIEF OF POLICE OF WOODBRIDGE TOWNSHIP, NEW JERSEY;
THE SUPERINTENDENT OF NEW JERSEY STATE POLICE
Alexander A. Artway, Appellant in No. 95-5195
(Civ. No. 94-cv-06287)
________________________________________
Present: SLOVITER, Chief Judge, BECKER, STAPLETON,
MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD,
ALITO, ROTH, LEWIS, McKEE, and SAROKIN, Circuit Judges,
1
and SHADUR, District Judge .1
______________________________________
SUR PETITION FOR PANEL REHEARING
WITH SUGGESTION FOR REHEARING IN BANC
______________________________________
The petitions for rehearing filed by Alexander Artway
in No. 95-5195 and by the Attorney General of New Jersey and the
Superintendent of the New Jersey State Police in Nos. 95-5157,
95-5194 and 95-5195 having been submitted to the judges who
participated in the decision of this Court and to all the other
available circuit judges in active service, and no judge who
concurred in the decision having asked for rehearing, and a
majority of the circuit judges of the circuit in regular active
service not having voted for rehearing by the court in banc, the
petition for rehearing is DENIED. Judges Greenberg, Nygaard,
Alito, and Sarokin would grant rehearing. Judge Alito's
dissenting opinion sur denial of rehearing is attached.
BY THE COURT:
/s/ Edward R. Becker
Circuit Judge
DATED: May 13, l996
1
As to panel rehearing only.
2
OPINION SUR DENIAL OF REHEARING
Artway v. Attorney General of the State of New Jersey
Nos. 95-5157, 95-5194 and 95-5195
Alito, Circuit Judge:
This case should be reheard by the full court.
Rehearing in banc is appropriate when a case "involves a question
of exceptional importance," Fed. R. App. Pr. 35(a), and the
constitutionality of the community notification provisions of
Megan's Law indisputably meets this standard. This question is
obviously important for those, such as Alexander Artway, who may
be subject to these requirements. It is also of enormous
importance to children like Megan Kanka, after whom the law was
named, and to their parents.
Seven-year-old Megan Kanka disappeared near her home
on a summer day in 1994. She was last seen talking to a next-
door neighbor, Jesse Timmendequas. The next day Timmendequas was
arrested and confessed that he had lured Megan into his home by
promising to show her a puppy. According to his confession, he
then raped and killed her. Only after Timmendequas's arrest
did Megan's parents learn that he was a multiple sex offender,
that he had assaulted and nearly killed another young girl in
1982, and that the other two men with whom he was sharing the
house were also convicted sex offenders whom he had met while
incarcerated.
These events and other similar offenses prompted the
New Jersey Legislature to enact the community notification
3
provisions that are at issue in this appeal. Similar laws
have been enacted by other states, and related legislation has
been passed at the federal level. The constitutionality of the
New Jersey provisions has been upheld by the New Jersey Supreme
Court. Doe v. Poritz, 142 N.J. 1,
662 A.2d 367 (1995). However,
the panel's decision in this case may well result in the
invalidation of these provisions. Following the panel's
decision, the United States District Court for the District of
New Jersey enjoined state officials from complying with them. The
denial of rehearing in this case means of course that, absent
some intervening action by the Supreme Court, the panel's
decision will control subsequent proceedings in the district
court and before panels of our court until another occasion for
in banc review arises. In the meantime, a law that was enacted
by the New Jersey Legislature to deal with what it viewed as a
grave and imminent threat will remain in constitutional limbo and
may go unenforced. I find this prospect unacceptable.
Whether the community notification provisions of
Megan's Law comport with the Ex Post Facto Clause is not an easy
question. The panel opinion's discussion of this question is
thoughtful and scholarly, and its effort to develop a grand
unified theory of "punishment" under the Double Jeopardy,
Excessive Fines, and Ex Post Facto Clauses is ambitious. I have
serious doubts, however, concerning critical portions of the
panel's analysis. I am particularly troubled by the panel's
conclusion that a measure may constitute "punishment" if its
"effects" or "negative repercussions -- regardless of how they
2
are justified -- are great enough." Op. at 53, 59. I am
doubtful that it is possible to determine that a measure
constitutes punishment based solely on its effects. Moreover, I
am convinced that the panel has misinterpreted California
Department of Corrections v. Morales, 115 S. Ct. 1597 (1995), the
precedent on which the panel's effects test is based.
Is it possible to conclude that a measure constitutes
"punishment" based solely on its effects or "sting"? It is
certainly not possible to conclude that a governmental action is
non-punitive based on its mild effects. (Even a mild criminal
sentence -- for example, ordering a defendant to pick up litter
in the park on a beautiful spring day -- is unquestionably
punishment.) Is it nevertheless possible to determine that a
measure constitutes "punishment" based on its harsh effects? I
am skeptical. It is settled that certain governmental actions
having severe effects are not "punishment." For instance,
pretrial detention, though sometimes quite harsh, is "regulatory,
not penal." United States v. Salerno, 481 U.S. 739 (1987). So
is the revocation of a professional or occupational license,
Hawker v. New York,
170 U.S. 189 1898), or the termination of
Social Security benefits. Fleming v. Nestor,
363 U.S. 603
(1960), even though the effects of these actions can be
devastating. It is also settled that deportation, "however
severe its consequences," does not implicate the Ex Post Facto
Clause. Harisiades v. Shaughnessy,
342 U.S. 580, 594 (1952)
(emphasis added). See also, e.g., INS v. Lopez-Mendoza,
468 U.S.
1032, 1038 (1984); Mahler v. Eby,
264 U.S. 32, 39 (1924) ("It is
3
well settled that deportation, while it may be burdensome and
severe for the alien, is not punishment."). In view of these
precedents, I have grave doubts whether the panel is correct that
a measure may be held to constitute "punishment" under the Ex
Post Facto Clause simply because its "negative repercussions --
regardless of how they are justified -- are great enough."
Artway, supra, slip op. at 59.
Moreover, I am convinced that the panel's effects test,
whatever else may be said in its favor, is not supported by the
Supreme Court's decision in Morales. I see no evidence
whatsoever that Morales was meant to adopt the far-reaching
proposition that a measure may be held to constitute "punishment"
for ex post facto purposes based solely on its effects. Certainly
the Court's opinion does not expressly embrace any such broad
proposition, and I think the best reading of the opinion is a
much narrower one.
Morales concerned a 1981 California statutory amendment
regarding eligibility for parole hearings. Morales had twice
been convicted of murder, first in 1971 for killing his
girlfriend and then in 1980 for killing and dismembering an
elderly woman who had befriended him while he was in prison and
who had married him after he was paroled. 115 S. Ct. at 1599-
1600. Under the law in effect at the time of his 1980
conviction, he would have been entitled to a parole hearing every
year beginning in 1989.
Id. at 1600. The 1981 amendment,
however, permitted the Board of Prison Terms to defer hearings
for up to three years under certain limited circumstances, viz.,
4
if a prisoner had been convicted of more than one offense
involving the taking of a life and if the Board found that it was
not reasonable to expect that parole would be granted during the
intervening years. Id. In denying Morales parole in 1989, the
Board found that he satisfied these criteria and thus deferred
his next hearing for three years.
Id.
Morales argued that the application to him of the 1981
amendment violated the Ex Post Facto Clause, and he "relie[d]
chiefly on a trilogy of cases holding that a legislature may not
stiffen the `standard of punishment' applicable to crimes that
have already been committed. See Lindsey v. Washington,
301 U.S.
423 . . . (1937); Miller v. Florida,
482 U.S. 423 . . . (1987);
Weaver v. Graham,
450 U.S. 24 . . . (1981)."
Morales, 115 S. Ct.
at 1601. The Supreme Court, however, distinguished these cases
on the ground that they involved laws that "had the purpose and
effect of enhancing the range of available prison terms," whereas
the amendment at issue in Morales "simply `alter[ed] the method
to be followed in fixing a parole release date under identical
substantive standards.'"
Id. at 1602 (citations omitted).2
The Court then rejected Morales' argument that "the Ex
Post Facto Clause forbids any legislative change that has any
2
The Court expressly disavowed Lindsey, Weaver, and Miller to the
extent those decisions "suggested that enhancements to the
measure of criminal punishment fall within the ex post facto
prohibition because they operate to the `disadvantage' of covered
offenders." Id. at 1602 n.3 (citations omitted). And the
opinion stressed that "the focus of the ex post facto inquiry is
not on whether a legislative change produces some ambiguous sort
of `disadvantage,' . . . but on whether any such change alters
the definition of criminal conduct or increases the penalty by
which a crime is punishable."
Id.
5
conceivable risk of affecting a prisoner's
punishment." 115
S. Ct. at 1602. The Court noted that this argument would require
invalidation of "any of a number of minor (and perhaps
inevitable) mechanical changes that might produce some remote
risk of impact on a prisoner's expected term of confinement,"
"including such innocuous adjustments as changes to the
membership of the Board of Prison Terms, restrictions on the
hours that prisoners may use the prison law library, reductions
to the duration of the parole hearing, restrictions on the time
allotted for a convicted defendant's right of allocution before a
sentencing judge, and page limitations on a defendant's
objections to presentence reports or on documents seeking a
pardon from the governor."
Id. at 1603. It was in this context
that the Court wrote that "the question of what legislative
adjustments `will be held to be of sufficient moment to
transgress the constitutional prohibition' must be a matter of
`degree.'"
Id. (emphasis in original) (quoting Beazell v. Ohio,
269 U.S. 167, 171 (1925)). The Court then concluded that the
1981 California amendment created "only the most speculative and
attenuated possibility of producing the prohibited effect of
increasing the measure of punishment for covered crimes" and that
"such conjectural effects" were "insufficient" to establish an ex
post facto violation.
Id.
I do not interpret Morales as standing for the sweeping
proposition that any measure may be held to constitute
"punishment" under the Ex Post Facto Clause based solely on its
effects. Rather, I think that Morales is a narrow decision that
6
means only that when a measure does not retrospectively "change
the sentencing range" applicable to a particular offense (115
S.Ct. at 1602) but does make procedural or other changes that may
indirectly affect the length of time that a prisoner may serve,
no violation of the Ex Post Clause will be found if the
possibility of such an indirect effect is "speculative and
conjectural." 115 S. Ct. at 1603. Morales does stand for the
proposition that the "effects" of a challenged measure are
significant within this narrow context, but I do not think that
it is correct to read Morales as adopting a universally
applicable effects test. It is telling, I think, that Morales
was not even cited in the excellent briefs filed on behalf of
Artway and his supporting amicus, the American Civil Liberties
Union of New Jersey.
The panel's effects test is especially troubling
because it encompasses not only the direct effects of the
community notification provisions but also what may be called
their secondary effects, that is, the effects on released sex
offenders of actions taken by private citizens who are in turn
affected by community notification. I doubt whether any
reasonably accurate assessment of the likely secondary effects of
community notification will be possible unless implementation of
these provisions is permitted in New Jersey or elsewhere in a
sufficiently large sample of cases over a sufficiently extended
period of time. As the panel itself seems to recognize, however,
the constitutionality of these provisions is likely to be settled
by the first batch of pre-enforcement challenges. See Op. at 22
7
n.9. At that point, it is doubtful that there will be an
adequate empirical basis for determining what the probable long
term effects of community notification will be. What we are
likely to see, I fear, are district court "findings" based on
bits of evidence that really prove little about the likely
effects over the long term of a program of community
notification. This is a most unedifying prospect.
For these reasons, I disagree with the court's refusal
to rehear this case in banc. Judge Greenberg and Judge Nygaard
join in this opinion.
8
